State v. M.O.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,v.M.O., DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-12-02324.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 18, 2010

Before Judges Wefing, Grall, and Messano.

A jury convicted defendant of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(a); two counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a; and one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. The trial court sentenced defendant to an aggregate twenty years in prison, with a seven-year period of parole ineligibility. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we have concluded that we are constrained to reverse defendant's convictions and remand for a new trial.

Defendant's victim was his daughter, H., who had lived with him since she was approximately three years old. At the time of defendant's trial in 2006, she was twenty years old but no longer residing with him. In late 2002, she approached her stepmother (her father had remarried in 2002) and her mother and reported to both of them that defendant had sexually abused her, starting when she was twelve years old. She said the abuse occurred repeatedly in the apartment she and her father shared in the Bronx, New York. She said she decided to reveal the abuse when she learned that her stepmother was pregnant and was expecting a baby girl. Eventually she decided to report the matter to the authorities, and her mother accompanied her to the prosecutor's office in the Bronx, where she gave a detailed statement. She included in her recitation to the New York authorities that her father had, on two occasions, taken her to a hotel in Fort Lee and abused her there. The New York authorities informed her that they did not have jurisdiction over any acts that may have occurred in New Jersey and that she would have to deal with the New Jersey authorities with respect to that conduct.

Defendant was charged in New York with a variety of offenses, and in June 2003, he entered a negotiated plea of guilty to one count of first-degree sexual abuse and admitted engaging in sexual intercourse with H. He was sentenced to six months incarceration and was released from custody shortly after the date of his sentencing.

After defendant plead guilty in New York but before sentencing, H. approached the Bergen County Prosecutor's Office to report the two instances in which she said her father had brought her to a hotel in Fort Lee and sexually assaulted her. After defendant was sentenced in New York, he was then arrested and prosecuted for these offenses. Defendant admitted the conduct in New York but denied ever assaulting H. in New Jersey. The theory of his defense was that H. was disappointed at the light sentence defendant received in New York and came to New Jersey to seek a greater punishment for defendant.

Defendant raises the following arguments on appeal:

POINT ONE

THE TRIAL COURT ERRED IN USING THE DISCREDITED CONCEPT OF RES GESTAE TO ADMIT EVIDENCE THAT OVER A FOUR-YEAR PERIOD OF TIME, M.O. REPEATEDLY COMMITTED ACTS OF SEXUAL ASSAULT AGAINST HIS DAUGHTER IN NEW YORK STATE. AT A MINIMUM, EVIDENCE OF THE NEW YORK ABUSE SHOULD HAVE BEEN LIMITED TO THE DISCREET [sic] PERIOD OF TIME DURING WHICH THE NEW JERSEY CRIMES WERE ALLEGED TO HAVE OCCURRED (Not Raised Below)

POINT TWO

EVEN IF EVIDENCE OF THE NEW YORK ABUSE WAS PROPERLY ADMITTED, THE JUDGE'S INSTRUCTION ON THE PERMISSIBLE USES OF THIS EVIDENCE WAS ERRONEOUS (Not Raised Below)

POINT THREE

THE TRIAL COURT ERRED IN PERMITTING THE STATE TO INTRODUCE, OVER M.O.'S OBJECTION, AN EMOTIONALLY CHARGED LETTER THAT [H.] WROTE TO THE NEW YORK SENTENCING JUDGE. EVEN IF THE LETTER WAS ADMISSIBLE UNDER THE DOCTRINE OF COMPLETENESS, N.J.R.E. 403 REQUIRED ITS EXCLUSION

A. The Prosecutor's Cross Examination of M.O. Was Unnecessarily Hostile And Sarcastic

B. In Summation, The Prosecutor Unfairly Denigrated The Defense And Improperly Involved The Jurors On a Personal Level When She Repeatedly Accused M.O. Of Attempting to Use His "Weapons" of "Manipulation" Against Them

C. In Summation, The Prosecutor Improperly Vouched For [H.'s] Credibility On a Critical Issue

D. In Summation, The Prosecutor Improperly Conveyed That She, Too, Believed that M.O.'s New York Sentence Was Unjustly Lenient And Improperly Encouraged The Jury To Think About The Adequacy Of The New York Sentence

POINT FIVE

THE TRIAL COURT FAILED TO TAKE APPROPRIATE MEASURES TO EXTINGUISH THE GRAVE POSSIBILITY THAT THE JURY CONVICTED M.O. OF SEXUALLY ASSAULTING [H.] ON NOVEMBER 10, 2000, WHICH WAS OUTSIDE THE TIME FRAME ALLEGED IN THE AMENDED INDICTMENT. ACCORDINGLY, M.O.'S CONVICTIONS ON COUNTS TWO AND FOUR MUST BE REVERSED (Not Raised Below)

POINT SIX

THIS CASE MUST BE REMANDED FOR RESENTENCING BECAUSE THE JUDGE RELIED ON INAPPROPRIATE AGGRAVATING FACTORS

The prosecution presented two witnesses: H. and the detective from the Bergen County Prosecutor's Office who investigated H.'s allegations. During the course of her testimony, H. was permitted to testify in detail about the course of conduct she experienced at defendant's hands in New York. Defendant urges on appeal this was error.

It is not entirely clear from the trial transcript under what theory this testimony was offered and accepted. The State argues that it was properly admitted as res gestae. It also contends that if the evidence is deemed evidence of other crimes under N.J.R.E. 404(b), it was properly admitted to show defendant's motive and intent.

Defendant argues the evidence in question was inadmissible because the doctrine of res gestae has been discredited, and he urges we abandon it as an independent ground upon which to admit evidence. He points to State v. Kemp, 195 N.J. 136, 163 (2008), and State v. Barden, 195 N.J. 375, 396 (2008), to support his position. The language to which he points, however, has not been adopted by the Court as its position; to date, it remains the view of a concurring minority. As an intermediate court, we are not free to depart from the holdings of the majority of the members of the Court.

In support of its position that the evidence was properly admitted as res gestae, the State relies upon State v. L.P., 338 N.J. Super. 227 (App. Div.), certif. denied, 170 N.J. 205 (2001), for the proposition that evidence of prior sexual abuse of a child may be admitted as res gestae evidence of the sexual assault at issue. In that case, however, the court was dealing with what was a regular course of conduct against a young victim who was unable to delineate a clear time line of when she had been assaulted. Id. at 238-39. The victim did not report her abuse for a number of years, and when she testified, she was recounting events that had transpired more than fifteen years earlier. We consider L.P. to be clearly distinguishable from the present matter and to provide no support for the admission of this evidence.

We turn then to the alternative basis upon which the State urges this evidence was properly admitted, N.J.R.E. 404(b), which provides that evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

When evidence is properly admitted under N.J.R.E. 404(b), it should, however, be "sanitized" so that only so much evidence is presented as is necessary to prove the point; unnecessary details should not be put before the jury. Barden, supra, 195 N.J. at 390; State v. Jenkins, 178 N.J. 347, 364-66 (2004); State v. Collier, 316 N.J. Super. 181, 194-95 (App. Div. 1998), aff'd o.b., 162 N.J. 27 (1999). Here, H. was permitted to testify about details of the assaults committed upon her in New York.

Further, when evidence is properly admitted under N.J.R.E. 404(b), the trial court should provide a clear limiting instruction to the jury, explaining how the evidence may be used and how it may not be used. This instruction "should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere." State v. Cofield, 127 N.J. 328, 341 (1992) (quoting State v. Stevens, 115 N.J. 289, 304 (1989)). Such an instruction should be given both when the evidence is first presented and again, in the court's final instructions. State v. Fortin, 189 N.J. 579, 601 (2007); State v. Blakney, 189 N.J. 88, 93 (2006); State v. Bragg, 295 N.J. Super. 459, 469 (App. Div. 1996). Here, the trial court did not provide any limiting instruction at all when the evidence was first presented to the jury.

While the trial court did provide a limiting instruction in its final charge to the jury,*fn1 that instruction was, in our judgment, fatally flawed. The Supreme Court has repeatedly stressed the critical nature of the limiting instructions that must accompany evidence admitted under N.J.R.E. 404(b). The jury must be told that it cannot infer from such evidence that the defendant, having committed prior bad acts, is a bad person with a propensity to commit crimes. State v. Reddish, 181 N.J. 553, 610-11 (2004). A proper limiting instruction tells the jury that it cannot conclude a defendant is guilty of the offenses charged because he committed other offenses in the past. Barden, supra, 195 N.J. at 394. Such an instruction is particularly critical in an atmosphere as emotionally fraught as was defendant's trial.

Here, the trial court admittedly told the jury that it could not use evidence relating to the New York assaults "to decide that the defendant has a tendency to commit crimes or that he is a bad person. That is, you may not decide that just because the defendant has committed other crimes, wrongs or wrongful acts he must be guilty of the present crime." However, the trial court also clearly instructed the jury that it could "decide that the evidence [of the New York assaults] does demonstrate that those acts did occur in Fort Lee and use it for that specific purpose." The trial court continued, "I have admitted the evidence only to help you decide the specific question of did the alleged acts in Fort Lee occur." It is that very use, however, that N.J.R.E. 404(b) is designed to prevent.

The State characterizes the court's instructions as merely "confusing" and points to the fact that the prosecutor did not urge in her closing that the jury should find defendant guilty on the basis of the evidence relating to the New York assaults. We are reluctant to rely on such a thin reed in the face of such a clearly erroneous statement to the jury. Nor can we expect a jury to perceive which portion of a contradictory charge is correct and which is incorrect. State v. Erazo, 126 N.J. 112, 122 (1991) (recognizing that contradictory and inconsistent charges are inherently inadequate); State v. McLaughlin, 47 N.J. Super. 271, 278-79 (App. Div. 1957), certif. denied, 26 N.J. 171 (1958). "Because proper jury instructions are essential to a fair trial, erroneous instructions on material points are presumed to possess the capacity to unfairly prejudice the defendant." State v. Grenci, 197 N.J. 604, 623 (2009) (quoting State v. Bunch, 180 N.J. 534, 541-42 (2004)). Thus, erroneous jury instructions in a criminal case are "poor candidates for rehabilitation under the harmless error theory." State v. Marrero, 148 N.J. 469, 496 (1997) (quoting State v, Wilson, 128 N.J. 233, 241 (1992)); State v. Simon, 79 N.J. 191, 206 (1979). We have thus concluded that we are constrained to reverse defendant's convictions.

This makes it unnecessary to address in detail defendant's remaining contentions. We would expect, however, that in any future proceeding the prosecutor shall refrain from the perception of sarcasm that runs through her cross-examination of defendant as well as from any comments in summation that imply that defendant tailored his testimony after having had the opportunity to hear all of the witnesses testify. State v. Daniels, 182 N.J. 80, 98-99 (2004).

We do not address directly the admissibility of a letter H. wrote prior to the sentencing proceedings in New York. The trial court appeared to admit it on the basis of completeness, that is, that defense counsel, in cross-examining H., had mischaracterized its contents. There is no indication in the transcript that the trial court examined the letter before ruling that H. could read the entire letter to the jury, a task that proved emotionally impossible for her. In any event, it is not possible to forecast at this juncture whether the same issue of completeness will develop during any subsequent proceedings.

Nor do we address defendant's arguments that the trial court erred in imposing sentence. We note merely that at various points in the sentencing proceeding, the trial court did appear to double count certain aggravating factors.

Reversed and remanded for further proceedings.

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